Boose v. Henderson , 148 Fla. 101 ( 1941 )

On petition for rehearing it is contended that the chancellor applied erroneous principles of law in determining the value of rentals due by appellants to appellee and that we have departed from the provisions of the statute, Sec. 795 R.G.S., 1026 C.G.L., Sec. 3239 R.G.S., 5047 C.G.L. et seq., and from the rule established by our former decisions, especially in the case of Lovett v. Shore, et al., 111 Fla. 592, 139 So. 194, and in the opinion in former appeal in this case, Henderson v. Boose et ux., 142 Fla. 804, 196 So. 671.

We cannot agree with this contention. Our opinion is not in conflict with either the statute, supra, or with the opinions and judgments in the cases cited. We recognize the rule that although there is some authority to the contrary, a bona fide occupant holding possession of land under color of title is not liable for the increased rental value of land caused by improvements put upon it by himself, and also that the rents must be computed upon the basis of the condition of the land when defendant took possession unless the occupant has been allowed fullcompensation for improvements or the owner is required to pay interest on the value of the improvements or the improvements are of no appreciable or permanent value. See 19 C.J. 1242, Sec. 377 and cases there cited.

The record presented before us warrants the conclusion that the increase in the rental value of the property between the time of the acquisition of the tax deed and the recovery of the property by the owner was not due principally to the establishment of permanent improvements on the land but is due to the fact that during that period of time it had been discovered that the land is particularly adapted to the production of potatoes and because of the peculiar soil condition, it will produce valuable crops of potatoes. This increase in value is due to inherent quality of the land and not to the improvements made upon the land. The improvements, that is, the digging of some ditches and experimental cultivation, proved the value inherent in the land. It is not the improvements that have any material rental value. The improvements do not give the land additional rental value but resulted in the demonstration of the fact that the land did possess, and does possess, a value that was unknown at the time the tax deed was issued. The tax deed holder has been allowed adequate compensation for his improvements and, as stated in the special concurring opinion filed herein on July 22, 1941, and concurred in by a majority of the Court, "and in determining the rental value to be assessed against the defendants in the court below appears to have given them credit for the part of the new rental value which was created bythem."

Another factor which may have properly been taken into consideration by the chancellor is that rental values of other lands in this locality have advanced in rental value, not due to any improvements placed upon the land but due to the fact that the lands have been found to be naturally adapted to the production of profitable crops.

This case is to be differentiated from one where a party makes improvements after notice of adverse claim. In such case the party making improvements after such notice may not be allowed to recover the value of such improvements.

We believe there is a very material difference to be observed between a case where the increased rental value of the land is caused by the erection thereon of permanent improvements and is, therefore, made up of the rental value of the land plus the value of the use of improvements, and a case where the making of ordinary improvements results in the discovery that the land possesses a use of rental value which had theretofore existed and continued to exist because of the theretofore unknown quality of soil. The latter is the sort of case we have here. The land is the same as it was at the time the void tax deed issued but it possesses a quality and value which was not then known to exist. If it had not possessed that inherent quality the improvements which were made would not have resulted in any material increase in value. The property, including the unknown value, was in the appellee, the owner, and she is entitled to the rental value inherent in the land, although a part of that value became known by reason of work done or improvements made by the appellant. Appellant has not been required to pay rent on the improvements.

For reasons stated, the petition for rehearing is denied.

So ordered.

WHITFIELD, TERRELL, CHAPMAN, THOMAS and ADAMS, J. J., concur.

BROWN, C. J., dissents.